ARC 4206C

ARC 4206C

ENGINEERING AND LAND SURVEYING EXAMINING BOARD[193C]

Adopted and Filed

Rule making related to review of agency's rules

The Engineering and Land Surveying Examining Board hereby amends Chapter 1, "Administration," Chapter 3, "Application and Renewal Process," Chapter 4, "Engineering Licensure," Chapter 5, "Land Surveying Licensure," Chapter 7, "Professional Development," Chapter 8, "Professional Conduct of Licensees," Chapter 9, "Complaints, Investigations and Disciplinary Action," Chapter 10, "Peer Review," Chapter 11, "Minimum Standards for Property Surveys," and Chapter 12, "Minimum Standards for U.S. Public Land Survey Corner Certificates," Iowa Administrative Code.

Legal Authority for Rule Making

This rule making is adopted under the authority provided in Iowa Code section 542B.6.

State or Federal Law Implemented

This rule making implements, in whole or in part, Iowa Code chapter 542B.

Purpose and Summary

These amendments reflect partial compliance with Iowa Code section 17A.7(2), which states that beginning July 1, 2012, over each five-year period of time, an agency shall conduct an ongoing and comprehensive review of all of the agency's rules. The goal of the review is to identify and eliminate all rules that are outdated, redundant, or inconsistent or incompatible with statute or the agency's rules or the rules of other agencies.

Public Comment and Changes to Rule Making

Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on August 15, 2018, as ARC 3946C. A public hearing was held on September 5, 2018, at 9 a.m. at 200 East Grand Avenue, Suite 350, Des Moines, Iowa. No one attended the public hearing. Thirteen written comments were received, and as a result, four changes from the Notice were made. Items 3, 7 and 13 of the Notice were not adopted because the Board felt further discussion was appropriate. New Item 19 was added to amend subrule 7.5(1). The remaining items were renumbered accordingly.

In addition, the ZIP code was added to the Board's address in subrule 1.1(2) and the word terms was changed to term in subrule 7.8(2).

Adoption of Rule Making

This rule making was adopted by the Board on November 14, 2018.

Fiscal Impact

This rule making has no fiscal impact to the State of Iowa. No current fees are being changed, and no new fees are being imposed.

Jobs Impact

After analysis and review of this rule making, there is a potential impact on jobs. The amendment to 4.1(2)"c" decreases from 25 to 10 the required years of work experience necessary for a waiver of the Fundamentals of Engineering (FE) examination. This change may make Professional Engineering (PE) licensure available to a larger group of candidates.

Waivers

Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Board for a waiver of the discretionary provisions, if any, pursuant to 193—Chapter 5.

Review by Administrative Rules Review Committee

The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee's meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).

Effective Date

This rule making will become effective on February 6, 2019.

The following rule-making actions are adopted:

Item 1. Amend subrule 1.1(1) as follows:

1.1(1) Administration. Administration of the board has not been separated into panels, divisions, or departments. While the expertise of a board member may be called upon to frame special examinations and evaluate applications for licensing in a specialized engineering branch, the board functions in a unified capacity on all matters that may come before it. The board maintains an office at 1920 S.E. Hulsizer Road, Ankeny, Iowa 50021 200 East Grand Avenue, Suite 350, Des Moines, Iowa 50309, and requests or submissions may be directed to the secretary of the board at that location.

Item 2. Amend subrule 1.1(2) as follows:

1.1(2) Meetings. Regular meetings of the board are held in Ankeny Des Moines, Iowa. Information concerning the location and dates for meetings may be obtained from the board's office at 1920 S.E. Hulsizer Road, Ankeny, Iowa 50021 200 East Grand Avenue, Suite 350, Des Moines, Iowa 50309, or by telephoning (515)281-4126(515)725-9022.

Item 3. Amend subrule 3.1(1) as follows:

3.1(1) Application expiration. On the examination application and comity applications due date, the examination application is applications are considered current if it has been one year or less since it was signed and notarized. A comity application expires one year from the date that it was signed and notarized the applications were received by the board office.

Item 4. Amend subrule 3.2(2) as follows:

3.2(2) Fundamentals of Land Surveying examination application components and due dates. The components of this application include: the completed , notarized application form ;, references pursuant to 193C—paragraph 5.1(5)"b"; and transcripts. Fundamentals of Land Surveying examination applications must be submitted to the board office. Applications submitted by the first day of each month will be reviewed by the board at the next regularly scheduled board meeting.

Item 5. Amend subrule 3.2(3) as follows:

3.2(3) Principles and Practice examination application components and due dates. Principles and Practice of Engineering and Principles and Practice of Land Surveying examination applications require a detailed review and must, therefore, be submitted to the board office , postmarked on or before July 15 of each year for the examination given in the fall and on or before January 15 of each year for the examination given in the spring. To facilitate the transition to computer-based testing offered throughout the year, application files with all required components submitted to the board office by the first day of each month will be reviewed at the next regularly scheduled board meeting. The Principles and Practice examination application packet , including includes the following components , must be postmarked on or before the deadline date: (1) the completed , notarized and signed online application form ;, (2) the required number of references ;, (3) the project statement ;, and (4) the ethics questionnaire. In addition, a complete application file must include verification of examination records and transcripts. Examination applications will not be reviewed by the board until the application file is complete. Since the verification of examination records must be sent directly from the jurisdiction where the applicant took the Fundamentals of Engineering examination, the applicant should contact the other jurisdiction well in advance of the deadline for submittal of the application to request this verification in order to ensure that the verification is received by the board no later than July 25 for the fall examination or by January 25 for the spring examination. For transcripts, the applicant should contact the university well in advance of the deadline for submittal of the application to ensure that the transcripts are received no later than July 25 for the fall examination or by January 25 for the spring examination. Examination application files that are not complete by January 25 will not be reviewed for the spring examination. Likewise, examination applications that are not complete by July 25 will not be reviewed for the fall examination by the deadline.

Item 6. Amend paragraph 4.1(2)"c" as follows:

c. An applicant who graduated from a satisfactory engineering program and has 25 10 years or more of work experience satisfactory to the board shall not be required to take the FE exam.

Item 7. Amend paragraph 4.1(6)"a" as follows:

a. Fundamentals of Engineering examination (fundamentals examination). The Fundamentals of Engineering examination is a written computer-based examination covering general engineering principles and other subjects commonly taught in accredited engineering programs.

Item 8. Amend paragraph 4.1(6)"b" as follows:

b. Principles and Practice of Engineering examination (professional examination). The Principles and Practice of Engineering examination is a written computer-based examination designed to determine proficiency and qualification to engage in the practice of professional engineering only in a specific branch. The Principles and Practice of Engineering two-module Structural examination is a written computer-based examination designed to determine proficiency and qualification to engage in the practice of structural engineering. A separate examination shall be required for each branch in which licensure is granted. An applicant may obtain a Structural branch license by passing either the Principles and Practice of Engineering Civil (Structural) examination or the Principles and Practice of Engineering two-module Structural examination.

Item 9. Amend subparagraph 4.2(3)"b"(1) as follows:

(1)An applicant who graduated from a satisfactory engineering program and who has 25 10 years or more of work experience satisfactory to the board shall not be required to take the Fundamentals of Engineering examination.

Item 10. Amend paragraph 4.2(4)"b" as follows:

b. For applicants who were originally licensed in another jurisdiction and who meet the requirements of Iowa Code section 542B.14(1)(a)(3) 542B.14(1)"a"(1)(c), the board will employ the following chart to determine if the applicant's licensure was granted after satisfaction of requirements substantially equivalent to those which were required by Iowa Code section 542B.14 at the time of the applicant's original licensure. Column 1 indicates the years of practical experience that were required prior to the Fundamentals of Engineering examination in addition to the completion of the required educational level. To determine the total years of practical experience that were required prior to taking the Principles and Practice of Engineering examination, column 2 is added to column 1.

Item 11. Amend subrule 5.1(7), introductory paragraph, as follows:

5.1(7) Practical experience requirements. Practical land surveying experience, of which a minimum of 25 percent is field experience, is required prior to licensing. The purpose of this requirement is to ensure that the applicant has acquired the professional judgment, capacity and competence to determine land boundaries. The following criteria will be considered by the board in determining whether an applicant's experience satisfies the statutory requirements.

Item 12. Amend paragraph 5.1(8)"a" as follows:

a. Fundamentals examination. The Fundamentals of Land Surveying examination is a written computer-based examination covering general surveying principles.

Item 13. Rescind paragraph 5.1(8)"b."

Item 14. Reletter paragraphs 5.1(8)"c" to "h" as 5.1(8)"b" to "g."

Item 15. Amend relettered subparagraph 5.1(8)"d"(4) as follows:

(4)An applicant who has failed two consecutive examinations of the state-specific portion of the professional land surveying examination shall not be allowed to retake the state-specific portion for the next two years one year in order for the applicant to acquire the necessary skill and knowledge to successfully pass the examination.

Item 16. Amend subrule 5.2(1) as follows:

5.2(1) References. An applicant for licensure by comity shall submit three one or more professional land surveyor references on forms provided by the board , at least two of which shall be from licensed professional land surveyors to verify the number of years of satisfactory experience required with the applicant's level of education. The board reserves the right to contact employers for information about the applicant's professional experience and competence.

Item 17. Amend paragraph 7.3(1)"i" as follows:

i. Attendance at satellite down-link online video courses;

Item 18. Amend subrule 7.4(1) as follows:

7.4(1) Group 1 activities. Group 1 activities are intended to maintain, improve, or expand skills and knowledge obtained prior to initial licensure. The following chart illustrates the maximum PDH allowable per renewal period for Group 1 activities:

Item 19. Amend subrule 7.5(1) as follows:

7.5(1) The continuing education requirement for biennial licensure renewal is 30 professional development hours for an active licensee in engineering or land surveying. At least 2 of the 30 professional development hours must be in the area of professional ethics. For individuals actively licensed in both engineering and land surveying, at least 4 of the 40 total professional development hours must be in the area of professional ethics. The number of professional development hours that may be carried forward into the next biennium shall not exceed 15.

Item 20. Amend subrule 7.8(1) as follows:

7.8(1) Record keeping. Maintaining records to be used to support professional development hours claimed is the responsibility of the licensee. It is recommended that each licensee keep a log showing the type of activity claimed, sponsoring organization, location, duration, instructor's or speaker's name, and PDH credits earned. Documentation of reported PDHs shall be maintained by the licensee for two years after the period for which the form was submitted.

Item 21. Amend subrule 7.8(2) as follows:

7.8(2) Compliance review. The board may select licensees for review of compliance with continuing education requirements on a random basis or upon receiving information regarding noncompliance and shall review compliance with continuing education requirements for reinstatement of lapsed or inactive licenses. Each licensed board member shall be audited for PDH compliance for a biennium that is within each member's respective three-year appointment term. For each professional development hour PDH claimed, licensees chosen for compliance review shall furnish:

a. Proof of attendance. Attendance verification records in the form of completion certificates, or other documents supporting evidence of attendance;

b. Verification of the hours claimed; and

c. Information about the course content.

Item 22. Amend subrule 7.8(3) as follows:

7.8(3) Compliance review sanctions. Any discrepancy between the number of PDHs reported and the number of PDHs actually supported by documentation may result in a disciplinary review. If, after the disciplinary review, the board disallows any PDH, or the licensee has failed to complete the required PDHs, the licensee shall have 60 days from board notice to either provide further evidence of having completed the PDHs disallowed or remedy the discrepancy by completing the required number of PDHs (provided that such PDHs shall not again be used for the next renewal). Extension of time may be granted on an individual basis and must be requested by the licensee within 30 days of notification by the board. If the licensee fails to comply with the requirements of this subrule, the licensee may be subject to disciplinary action. If the board finds, after proper notice and hearing, that the licensee willfully disregarded these requirements or falsified documentation of required PDHs, the licensee may be subject to disciplinary action as further identified in 193C—paragraphs 9.3(1)"c" and 9.3(3)"e."

Item 23. Amend subrule 8.5(2), definition of "In responsible charge," as follows:

"In responsible charge" means having direct control of and personal supervision over any professional land surveying work or work involving the practice of professional engineering. One or more persons, jointly or severally, may be in responsible charge. Indicia Indications of being "in in responsible charge" charge include:

1.Obtaining or setting the project or service parameters or criteria.

2.Dictating the manner and methods by which professional services are performed.

3.Establishing procedures for quality control and authority over professional services in a manner that ensures that the professional licensee is in control of the work and of all individuals performing the work under the licensee's supervision.

4.Spending sufficient time directly performing the work or directly supervising the work to ensure that the licensee is familiar with all significant details of the work.

5.Maintaining familiarity with the capabilities and methods of the persons performing professional services, and providing adequate training for all persons working under the licensee's direct supervision.

6.Sustaining readily accessible contact with all persons performing professional services by direct physical proximity, or as appropriate in the licensee's professional judgment, by frequent communication, in clear and complete verbal and visual form, of information about the work being performed.

7.Specifically pertaining to land surveying, reviewing all field evidence and making all final decisions concerning the placement of survey monuments and surveyed lines.

Item 24. Amend subrule 9.1(1) as follows:

9.1(1) Complaints. The board shall, upon receipt of a complaint in writing, or may upon its own motion pursuant to other evidence received by the board, review and investigate alleged acts or omissions which reasonably constitute cause under applicable law or administrative rule for licensee discipline. Written complaints Complaints may be submitted to the board office by mail, E-mail, facsimile, or personal delivery via the board's website by members of the public, including clients, business organizations, nonprofit organizations, governmental bodies, licensees, or other individuals or entities with knowledge of possible violations of laws or rules by licensees.

Item 25. Amend rule 193C—9.3(17A,272C,542B,546), introductory paragraph, as follows:

193C—9.3(17A,272C,542B,546) Grounds for discipline. The board has authority pursuant to Iowa Code chapters 542B, 17A and 272C to impose discipline for violations of those chapters and the rules promulgated thereunder and may initiate disciplinary action against a licensee holding an active, inactive or lapsed license on any of the following grounds:

Item 26. Rescind subrule 9.3(6) and adopt the following new subrule in lieu thereof:

9.3(6) Professional misconduct. Professional misconduct includes, but is not limited to, revocation, suspension, or other disciplinary action taken against a licensee by a licensing authority of this state or another state, territory, or country. "Disciplinary action" includes a voluntary surrender of a license to resolve a pending disciplinary investigation or proceeding. A stay by an appellate court shall not negate this requirement; however, if such disciplinary action is overturned or reversed by a court of last resort, discipline by the board based solely on such action shall be vacated. A licensee shall notify the board of such disciplinary action within 30 days of the disciplinary action.

Item 27. Amend rule 193C—9.6(542B) as follows:

193C—9.6(542B) Publication of decisions. In addition to publication requirements found at 193—subrule 7.30(3), the following notifications shall be issued:

1.Following suspension of a professional land surveyor's license, notification must be mailed issued to the county recorders and county auditors of the county of residence and immediately adjacent counties in Iowa.

2. and 3. No change.

Item 28. Amend rule 193C—10.1(542B,272C) as follows:

193C—10.1(542B,272C) Peer review committee (PRC). The board may appoint a peer review committee reviewer, or multiple peer reviewers, for the investigation of a complaint about the acts or omissions of one or more licensees.

10.1(1) PRC membership Peer review. A PRC Peer reviewers shall generally consist of three or more be licensed engineers or licensed land surveyors or both, as determined by the board, who are selected for their knowledge and experience in the type of engineering or land surveying involved in the complaint. The board may appoint a two-member PRC or a single peer review consultant to perform the function of a PRC when, in the board's opinion, appointing a committee with three or more members would be impractical, unnecessary or undesirable given the nature of the expertise required, the need for prompt action or the circumstances of the complaint.

An individual shall be ineligible for membership on a PRC as a peer reviewer in accordance with the standard for disqualification found at 193 IAC 7.14(1) 193—subrule 7.14(1). If a PRC member peer reviewer is unable to serve after an investigation has begun, the PRC member peer reviewer must notify the board office.

10.1(2) Authority. The PRC's peer reviewer's investigation may include activities such as interviewing the complainant, the respondent, individuals with knowledge of the alleged violation, and individuals with knowledge of the respondent's practice in the community; gathering documents; conducting site visits; and performing independent analyses as deemed necessary. Although the board does not become involved in a complaint investigation, the board may give specific instructions to the PRC peer reviewer regarding the scope of the investigation. In the course of the investigation, PRC members the peer reviewer shall refrain from advising the complainant or respondent on actions that the board might take.

10.1(3) Term of service. The PRC peer reviewer serves at the pleasure of the board. The board may dismiss any or all members of a PRC peer reviewer or add new members peer reviewers at any time.

10.1(4) Compensation. The terms of payment as authorized by the peer review agreement may vary based on the nature and complexity of each assignment and whether the peer reviewer will act as a single peer reviewer or as part of a peer review committee. The peer reviewer shall be additionally entitled to reimbursement of expenses directly related to the peer review process, deposition or hearing preparation, or deposition or hearing testimony, such as mileage, meals, or out-of-pocket charges for securing copies of documents. Expenses will be reimbursed as allowed under the manuals and guidelines published by the Iowa department of administrative services, state accounting enterprise. The PRC peer reviewer shall not hire legal counsel, investigators, secretarial help or any other assistance without written authorization from the board.

Item 29. Amend rule 193C—10.2(542B,272C) as follows:

193C—10.2(542B,272C) Reports. Each PRC peer reviewer shall submit a written report to the board within a reasonable period of time 90 days of the peer review assignment, unless an extension is granted by the board.

10.2(1) Components of the report. The report shall include:

a. A statement of the charge to the PRC peer reviewer;

b. A description of the actions taken by the PRC peer reviewer in its the peer reviewer's investigation, including but not limited to document review, interviews and site visits;

c. A summary of the PRC's peer reviewer's findings, including (1) the PRC's peer reviewer's opinion as to whether a violation has occurred, (2) citation of the Iowa Code section(s) and Iowa Administrative Code rule(s) violated, and (3) the PRC's peer reviewer's opinion of the seriousness of the violation; and

d. A recommendation.

In the case of a land surveyor PRC peer reviewer report, the report must be plat-specific as to the violations.

10.2(2) Recommended action. The PRC peer reviewer report shall recommend one of the following:

a. Dismissal of the complaint,

b. Further investigation, or

c. Disciplinary proceedings.

If the PRC peer reviewer recommends further investigation or disciplinary proceedings, supporting information must be submitted to the board, including citation of the specific Iowa Code section(s) and Iowa Administrative Code rule(s) violated.

10.2(3) Disciplinary recommendations. When recommending disciplinary proceedings, a PRC peer reviewer shall refrain from suggesting a particular form of discipline, but may provide guidance on the severity of the violations that prompted the recommendation and may identify professional areas in which the licensee needs additional education, experience or monitoring in order to safely practice.

Item 30. Amend rule 193C—10.3(542B,272C) as follows:

193C—10.3(542B,272C) Confidentiality. The PRC peer reviewer shall not discuss its the peer reviewer's findings and conclusions with any party to the complaint. PRC Peer reviewer findings including the name of the complainant shall be kept confidential at all times. The PRC peer reviewer shall not reveal its the peer reviewer's findings to anyone other than the board (through its the peer reviewer's report to the board) or board staff. PRC Peer reviewer findings shall be used only for the purposes of the board's possible disciplinary action and not for any other court case, lawsuit, or investigation. PRC Peer reviewer reports are not subject to discovery.

Item 31. Amend rule 193C—10.4(542B,272C) as follows:

193C—10.4(542B,272C) Testimony. PRC members Peer reviewers may be required to testify in the event of formal disciplinary proceedings.

Item 32. Amend rule 193C—11.2(542B), definition of "Retrace," as follows:

"Retrace" means following along a previously established line to logical termini monumented by corners that are found or placed by the surveyor.

Item 33. Amend rule 193C—11.4(542B) as follows:

193C—11.4(542B) Descriptions. Descriptions defining land boundaries written for conveyance or other purposes shall be complete, providing definite and unequivocal identification of lines or boundaries. The description must contain dimensions sufficient to enable the description to be platted and retraced and shall describe the land surveyed either by government lot or by quarter-quarter section or by quarter section and shall identify the section, township, range and county; and by metes and bounds commencing with some a corner marked monumented and established in the U.S. Public Land Survey System; or if such land is located in a recorded subdivision or recorded addition thereto, then by the number or other description of the lot, block or subdivision thereof which has been previously tied to a corner marked monumented and established by the U.S. Public Land Survey System. If the parcel is described by metes and bounds, it may be referenced to known lot or block corners in recorded subdivision or additions.

Item 34. Amend subrule 11.5(5) as follows:

11.5(5) The plat shall show that record title boundaries, centerlines, and other boundary lines were retraced to monuments found or placed by the surveyor. The surveyor shall retrace those exterior lines of a section that divide a metes and bounds-described parcel of land to determine acreage for assessment and taxation purposes.

Item 35. Amend paragraph 12.2(2)"a" as follows:

a. There is no certificate for the corner monument on file with the recorder of the county in which the corner is located.

Item 36. Amend paragraph 12.2(3)"a" as follows:

a. The identity of the corner monument, with reference to the U.S. Public Land Survey System, shall be clearly indicated.

[Filed 12/7/18, effective 2/6/19]

[Published 1/2/19]

Editor's Note: For replacement pages for IAC, see IAC Supplement 1/2/19.